A High Court judge has rejected an attempt to remove a law firm from ongoing property litigation, ruling that a solicitor’s past supervisory role at a former firm did not, without evidence of retained confidential information or a real risk of disclosure, create an unmanageable conflict of interest.
What did the High Court decide?
In Re A and C (Solicitors: Conflict of Interest) [2026] EWHC 2842 (Fam), Deputy High Court Judge Nageena Khalique KC dismissed the defendant’s application for an order requiring Birketts LLP to cease acting for the claimant. The judgment was handed down on 4 November 2026, following a hearing on 21 and 22 September 2026.
The underlying proceedings concern a property in Tunbridge Wells registered in the parties’ joint names as tenants in common in equal shares. The claimant seeks declarations about beneficial ownership, an order for sale and associated relief under the Trusts of Land and Appointment of Trustees Act 1996. The substantive property issues were not determined in this judgment.
The application instead focused on whether Birketts could continue representing the claimant after Sebastian Burrows joined the firm. Mr Burrows had previously been a partner at Stowe Family Law, which had acted for the defendant during 2025. The court concluded that the defendant had not established the factual basis required to restrain Birketts from acting.
How did the alleged conflict arise?
The defendant had instructed Stowe Family Law between January and December 2025. Mr Burrows was identified in the client care documentation as the partner with overall responsibility for the matter, although the day-to-day work was principally handled by another solicitor, Maya Bhatiani.
Mr Burrows left Stowe at the end of December 2025 and joined Birketts on 13 April 2026. By the time he joined, the claimant’s case had already been pleaded by a separate team within Birketts. The claimant’s litigation team was based in Bristol and dealt with property disputes, while Mr Burrows worked in the family law team at the Cambridge office.
The defendant argued that confidential information shared with Stowe was attributable to Mr Burrows and, on his arrival, automatically became imputed to Birketts. He relied on paragraph 6.5 of the Solicitors Regulation Authority Code of Conduct and the House of Lords decision in Prince Jefri Bolkiah v KPMG (A Firm). He contended that no information barrier could cure what he described as a structural conflict.
Birketts disputed that analysis. Mr Burrows said he had no recollection of the defendant or the case, had retained no documents and had neither accessed nor attempted to access the claimant’s file. He also had no contact with the team conducting the claimant’s litigation.
- The defendant began instructing Stowe Family Law; Mr Burrows was identified as the partner with overall responsibility.
- Mr Burrows resigned from Stowe and subsequently ceased accessing the firm’s case files.
- Mr Burrows’ employment with Stowe ended.
- Mr Burrows joined Birketts LLP.
- The High Court heard the application concerning the alleged conflict.
- The judgment was handed down and the application was dismissed.
What legal test did the court apply?
The judge considered paragraph 6.5 of the SRA Code of Conduct, which prevents a solicitor or firm from acting where a client’s interests are adverse to those of a current or former client and the firm holds material confidential information, unless effective measures remove any real risk of disclosure or informed written consent has been given.
The court emphasised that the governing principles also arise from the equitable jurisdiction to protect confidential information. In Prince Jefri Bolkiah v KPMG (A Firm) [1999] 2 AC 222, the House of Lords explained the continuing duty owed to former clients and the need to protect them from the risk that confidential information may be used against them.
However, the authorities do not establish an absolute rule that a solicitor’s knowledge is automatically and irrebuttably imputed to every member of a new firm. The court also considered Koch Shipping Inc v Richards Butler (A Firm) [2002] EWCA Civ 1280, in which the Court of Appeal recognised that the facts of each case matter and that effective safeguards may remove a real risk of disclosure.
“The former client must establish that the defendant solicitors possess confidential information which is or might be relevant to the matter.”
Principle from Koch Shipping Inc v Richards Butler, as considered in the judgment.
The judge identified two central questions: whether Mr Burrows presently possessed confidential information belonging to the defendant that was relevant to the property proceedings; and, if so, whether there was a real risk that the information could be disclosed to those conducting the claimant’s case.
Why was there no real risk of disclosure?
The judge accepted Mr Burrows’ evidence that he had no recollection of the defendant or the case, no memory of receiving or reviewing the relevant materials and no recollection of strategic discussions. His role at Stowe had been supervisory rather than day-to-day, with the principal conduct of the file delegated to Ms Bhatiani.
The court also accepted that Mr Burrows had been unable to access Stowe’s files during his sick leave and subsequent garden leave, and that he had not brought electronic or hard-copy documents with him to Birketts. At Birketts, he could not access the claimant’s file and had no involvement or communication with the team conducting the litigation.
The defendant was unable to identify an email, discussion, attendance note, file-access record, meeting or document showing that confidential information had passed to the claimant’s legal team. The judge held that the suggestion of disclosure was speculative and that the defendant’s assertion of automatic imputation was not supported by the authorities.
In addition, the separation between the departments and offices, the absence of file access, the lack of retained documents and Mr Burrows’ understanding of his professional duties were found, taken together, to amount to effective information barriers. The judge concluded that these safeguards eliminated any real risk of disclosure. Birketts and Mr Burrows had also offered undertakings, which the court noted provided additional protection.
What does the ruling mean for law firms?
The decision underlines that conflict applications involving a solicitor’s move between firms are highly fact-sensitive. A former professional relationship, or the fact that a solicitor once had supervisory responsibility for a matter, will not by itself establish that the solicitor currently possesses relevant confidential information.
Firms facing such issues should be able to demonstrate the practical safeguards in place, including restricted file access, separation of teams and offices, and clear controls preventing contact with the matter. The court will examine the actual evidence and whether those measures remove a real risk of disclosure.
The judgment does not diminish the importance of former-client confidentiality. Rather, it confirms that the court’s assessment turns on whether relevant confidential information is held and whether there is a real risk that it could reach those acting for an adverse party. A bare presumption of firm-wide imputation is not enough.
Frequently asked questions
Can a law firm act against a former client if a solicitor joins from the former client’s firm?
It may be able to do so. The court will consider whether the solicitor currently possesses confidential information relevant to the new matter and whether there is a real risk of disclosure. The outcome depends on the evidence and the effectiveness of safeguards.
Does a solicitor’s knowledge automatically become imputed to their new firm?
No. The judgment rejected the proposition that the authorities establish an irrebuttable rule of automatic firm-wide imputation. The court must assess the facts, including whether confidential information is actually held and whether there is a real risk of disclosure.
What are information barriers?
Information barriers are safeguards designed to prevent confidential information held by one solicitor or team from being accessed or shared with colleagues working for an adverse client. In this case, separate departments and offices, restricted file access and the absence of communications were relevant to the court’s assessment.
Which cases did the judge consider?
The judgment considered Prince Jefri Bolkiah v KPMG (A Firm) [1999] 2 AC 222, Koch Shipping Inc v Richards Butler (A Firm) [2002] EWCA Civ 1280 and ZS v FS (Application to Prevent Solicitor Acting) [2017] EWHC 2660 (Fam), alongside paragraph 6.5 of the SRA Code of Conduct.
What was the outcome of the application?
The defendant’s application was dismissed. Birketts LLP was permitted to remain on the record and continue acting for the claimant in the property proceedings.